[2023] KEHC 23470 (KLR)

Republic v Njiru (Criminal Case 10 of 2018) [2023] KEHC 23470 (KLR) (11 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23470 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 10 of 2018

RM Mwongo, J

October 11, 2023

Between

Republic

Prosecution

and

Moses Muriithi Njiru

Accused

Judgment

1. The Accused was charged with the murder of his wife Beatrice Njeri Njiru, on July 9, 2018. On July 19, 2018. He pleaded not guilty to the offence, and the trial commenced. After two witnesses had been heard, the defence on June 30, 2022, proposed a plea bargain agreement. The court allowed negotiations to proceed, and on June 5, 2023, the parties availed a signed Plea Bargain Agreement (PBA) dated May 31, 2023 made pursuant to section 137A (i) and 137B of the Criminal Procedure Code.

2. The court was satisfied that the accused had understood his rights and the contents of the Plea Bargain Agreement; and that he had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion. Accordingly, the court adopted the PBA pursuant to section 137G of the Criminal Procedure Code.

3. The brief facts of the case as agreed in the PBA are as follows: On June 25, 2018 at 13. 00 pm the accused returned home and found his wife had not returned. He went to search for her and found her at a corner pub at Wakenya Trading Centre. Enraged with her conduct, he embarked on whipping her as he escorted her home. She requested for water which the accused ordered her to fetch for herself. He then lifted her and placed her on the bed and covered her with a blanket.

4. Later, the accused brother went to check on her. He opened the blanket and found her dead. He informed the area assistant chief and the police. The investigating officer went to the scene of crime and found the accused having been handcuffed and seated on the ground. He entered the house and found the deceased lying dead on her matrimonial bed. He noticed that the body had slight injuries on the forehead with bruises on the neck. She also had mud on her body and laid naked while covered with a blanket. They moved the body to Embu Level 5 Hospital Mortuary and the post mortem was conducted on June 28, 2018. The post mortem report indicates that the cause of death was due to asphyxia due to manual strangulation with head injury.

5. On June 5, 2023, the court convicted the accused for the offence of Manslaughter, Contrary to section 202 as read with section 205 of the Penal Code. The Pre-Sentence Probation Report was filed as directed by the court, and the matter proceeded for Mitigation.

6. In mitigation, the defence counsel made the following submissions: that the accused was remorseful for the incident; that the deceased’s child needs parental support; that the community and the deceased family are willing to support him and welcome him back to society; further, that the probation report is favourable. Counsel sought a non-custodial sentence for the accused.

7. The prosecution submitted that the accused has been in custody since July, 2017. The state does not oppose a non-custodial sentence, noting that there is a minor who is dependent on the accused. However, the state pointed out that the Pre-Sentence Probation Report shows that the accused abused drugs hence he should be rehabilitated.

Determination and sentence 8. The Probation Report indicates that the accused is 39 years of age, and is the last born in the family and has six siblings. They live on the family land in Gituba village, Kirinyaga East sub-county. The accused was married to the deceased and had a son, who is in Grade 3. The accused dropped out of school at class 3 due to lack of interest in education. He then obtained work in a quarry to that is on their farm to earn a living. He confirmed to have been smoking bhang, drunk alcohol and sniffed glue.

9. According to the Report, the community knows the accused as a drugs and alcohol addict. The accused is not viewed as a threat to the community and is not likely to be harmed by members of the public should he be released. He has a supportive family that is willing to assist him reintegrate to the community. It notes that the victim left behind some children who are now motherless. Nonetheless, the victim’s family support a non-custodial sentence so that the accused can provide for his child.

10. The Probation Report concludes by making a recommendation that the accused is suitable for a non-custodial sentence with supervised community service which can be served at the at the chief’s office in Kithure.

11. The applicable law on sentence for the offence of manslaughter is found under the provisions of section 205 of the Penal Code which reads as follows;“Any person who commits the felony of manslaughter is liable to imprisonment for life”

12. The section provides for the maximum sentence, that is, life imprisonment. This court has taken into consideration the aggravating circumstances in that the convict murdered the victim by manual strangulation with head injury.It has also considered the Probation report.

13. The court notes that the Supreme Court in the case of Francis Karioko Muruatetu &another v Republic [2017] eKLR provided for the mitigating circumstances which ought to be considered before sentencing, as follows:“In sentencing the court will consider mitigating factors such as the following;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the court considers relevant.”

14. I have taken into consideration the above sentencing guidelines; and taking into account the fact that the accused has been incarcerated for five (5) years and three months since July 2018; and further taking into account the Probation Report and its recommendation for a non-custodial sentence, the accused satisfies the criteria for a reduced sentence from the maximum sentence of life imprisonment.

15. Accordingly, I mete sentence on the accused as follows:a.The accused shall serve a sentence of twelve (12) years imprisonment, to run from the date when the accused was first incarcerated in remand. The court notes that the Accused is entitled to remission of one third (1/3) of his sentence under the Prisons Act, which would leave him with 8 years. Of those he has served 5 years and three months.b.The accused shall serve the balance of his prison term of 2 years and 9 months in a non-custodial sentence during which time he shall be engaged in community service at Kithure Chief’s Camp under the supervision of the Chief and the Probation Officerc.During the period of his non-custodial sentence the accused shall attend a programme of counselling on drug and substance abuse designed and facilitated by the Probation Officer.d.Should the accused fall afoul of the law and be convicted during any period of time from the date hereof and prior to the completion of his sentence, the accused shall be liable to arrest and his sentence shall be reviewed by this court.

16. Orders accordingly.

DATED AT KERUGOYA THIS 11TH DAY OF OCTOBER 2023……………………………………R MWONGOJUDGEDelivered in the presence of:1. Otuke for the Accused2. Mamba for the State3. Moses Njiru Accused in Person4. A. Murage - Court Assistant